State of Washington

Ethics Advisory Committee

Question

1. Does a superior court judge have a conflict of interest with the prosecutor’s office if a majority of the county law library board of trustees votes to send a demand letter to the county commissioners, pursuant to RCW 27.24.066, to restore space to the law library, which space is now being used by the prosecutor’s office, and the judge signs the demand letter in the capacity as chair of the board?

2. Should the superior court judge be disqualified from sitting on the county law library board of trustees because a majority of the law library board voted to send a demand letter to the county commissioners, pursuant to RCW 27.24.066, to restore space to the law library, which space is now being used by the prosecutor’s office?

3. Should the superior court judge, acting as the county law library board of trustees chair, sign a demand letter to the county commissioners to provide suitable space of the law library, pursuant to RCW 27.24.066, when a majority of the county law library board voted to send the letter?

4. Should the superior court judge be disqualified from sitting on the county law library board of trustees if the law library board files a lawsuit against the county to provide suitable space for the law library, pursuant to RCW 27.24.066, (a) when the county prosecutor may lose office space if the lawsuit is successful, (b) when the prosecutor will be defending the county against the lawsuit, and (c) when the prosecutor threatens to file affidavits of prejudice against the judge if the lawsuit is brought?

5. Would it be a conflict of interest, requiring the judge to recuse from hearing criminal cases, if the judge informed the county law library board of trustees about the prosecutor’s threat to file affidavits of prejudice based on a decision made by a majority vote of the law library board?

Facts

The superior court judge, pursuant to RCW 27.24.066(2) serves on the county law library board of trustees. The law library has always suffered from a lack of suitable space to house law books. Because there was no security for the law library, many books were lost or not returned. Despite the lack of space and security, the board of trustees made no demand, pursuant to RCW 27.24.066 for the county to provide suitable space for many years. Rather, the law library elected to wait for the county to construct its new law and justice facility that would alleviate the space and security problems. The process of deciding to build a new facility and actually starting and finishing construction took the county 15 years.

During the design phase for the new facility, the county commissioners cut the space allocated to the law library twice, both times without any input from the law library board, even though one of the county commissioners was a member of the law library board. After the first cut, the law library board voted to get rid of approximately 2/3’s of the current inventory of law books because there was not enough space to accommodate the books in the new spaces.

To compensate for the loss, the law library board voted to provide three computers for legal research, utilizing a computerized legal research service, and to provide some basic hard-bound books. The law library board voted, requested and received architectural plans for the reduced space, which included an office which could be locked to provide security for the computer equipment and towers necessary for the computerized research. The law library board also voted to hire a law librarian who would keep the law library open to the public and who would use the office space.

A few days before the law library was scheduled to move to the new library space, the law library board learned the county commissioners had again cut the space without any notification to the board. That cut eliminated the office space. The board later learned the county commissioners decided in a meeting with the prosecutor to give the space to the prosecutor even though the plans clearly defined the space for the law library.

The law library board called an emergency meeting and asked local attorneys to view the library space and give an opinion as to whether the space is adequate or suitable. Based on that meeting and discussion among the law library board members, the board voted (3 to 1) that the space reduced a second time was not suitable pursuant to RCW 27.24.066. Because it was not a tie vote, it was not necessary for the judge, who serves as the board chair, to vote. The law library board again voted 3 to 1 to send a demand letter to the county commissioners to provide for a suitable space for the law library pursuant to RCW 27.24.066. Again, since it was not a tie vote the judge-chair did not vote but did sign the demand letter along with the secretary. The demand letter also notified the county commissioners if they were unwilling to accommodate the demand, the law library board would commence suit and request injunctive relief and a writ of mandamus.

The county prosecutor asked for a meeting with the judge. The prosecutor in that meeting contended the judge’s position in the demand letter to the county commissioners created a conflict of interest. Without that space the prosecutor felt his office could not perform its job. He said his office would file affidavits of prejudice against the judge because of the law library board position in the demand letter. The judge explained that the demand letter was signed as the chair of the law library board, that the judge did not vote on the issue and was required by law to serve on the board. The prosecutor suggested the judge recuse from the board and revise the demand letter so that it only asked for suitable space rather than a demand for the office space now used by the deputy prosecutor.

The judge advised the prosecutor that the position on the law library board is distinct from the judicial duties and one would not influence the other. The prosecutor responded the judge could not be fair and impartial because she would be taking office space from his office and because he would have to defend any lawsuit brought against the county commissioners. The judge told the prosecutor that the court often heard cases in which the prosecutor represented the county and such representation does not affect the court’s decision. The prosecutor contended this situation is different even though the case would be heard by a different judge and he would file affidavits of prejudice against the judge if a lawsuit were commenced.

Answer

CJC Canon 3(B)(1) in part provides that judges should diligently discharge their judicial administrative responsibilities. Canon 3(D)(1) provides that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned.

1. No, a superior court judge does not have a conflict of interest with the prosecutor’s office if a majority of the county law library board of trustees votes to send a demand letter to the county commissioners, pursuant to RCW 27.24.066, to restore space to the law library, which space is now being used by the prosecutor’s office, when the judge signs the demand letter in the capacity as chair of the law library board.

2. No, a superior court judge should not be disqualified from sitting on the county law library board of trustees because a majority of the law library board voted to send a demand letter to the county commissioners to restore space to the law library which space is now being used by the prosecutor’s office.

3. The superior court judge, as chair of the law library board, may sign the demand letter to the county commissioners pursuant to CJC Canon 2(A) when the county law library board voted to send the letter.

4. No, the superior court judge is not required to recuse from sitting on the law library board if the board files a lawsuit against the county to provide adequate space for the library pursuant to RCW 27.24.066. Canon 3(D) requires the disqualification of judicial officers only in those situations where their impartiality might reasonably be questioned.

5. No, it would not be a conflict of interest, requiring the judge to recuse from hearing criminal cases, if the judge informed the county law library board of trustees about the prosecutor’s threat to file affidavits of prejudice based on a decision made by a majority vote of the law library board.

Opinion 01-06

09/28/2001